Child Homicide

Child homicide is a criminal offence in Victoria that can be found in section 5A of the Crimes Act 1958. It is committed by a person whose conduct resulted in a child being killed under the circumstances of manslaughter. The child must be under the age of 6 years.
Flowers and Hands on Coffin of a Victim of Child Homicide
Police Interview
Anything you tell the Police without advice can make running a defence in Court more difficult later on.

Contact us for confidential legal advice before speaking to the Police. We can answer your important questions such as – should I make a statement to Police? Should I attend a Police interview? Do I need to give my DNA? Will the Police leave me alone if I explain my side of the story? Will I be remanded?

Our lawyers can also attend the Police station with you if you feel more comfortable having someone on your side.

Pleading not guilty
If you plead not guilty, the prosecution must prove each element of the relevant offence beyond a reasonable doubt. In defending an allegation of child homicide, you want a lawyer who is going to ask the Police – Is there relevant CCTV footage? Is there medical material that needs to be gathered? Can we prove you have an alibi? Is self-defence relevant? Are there people who the Police have not spoken to who can shed some light on this case? Is there evidence that proves you are innocent and which we need to preserve?

The answer to these questions can lead to Prosecutors withdrawing a child homicide charge.

We are criminal defence lawyers who specialise in representing people charged with child homicide. We have successfully defended many people accused of this offence.

Pleading guilty
If you are pleading guilty to child homicide we can prepare a plea strategy that is tailored to your personal circumstances, and that will get the best outcome for you. We also guide you through the process of obtaining material to support our case, such as medical reports and character references.

Preparing a defence strategy early will increase the chances of preserving valuable evidence which can help your case later on. It may lead to witnesses that we will take statements from rather than the Police.

Which court will the case be heard in?
Child homicide is an indictable offence. These matters are heard in the Supreme Court.

Elements of Child Homicide
The Prosecution must must prove that you have committed the offence of manslaughter against a child under 6 years. Manslaughter is the unlawful killing of a person in circumstances that do not amount to murder.

There are two kinds of manslaughter – manslaughter by unlawful and dangerous act, or negligent manslaughter.

To prove child homicide has occurred, the following elements must be proved beyond reasonable doubt:

  1. An act or omission by the defendant caused the death of a child under 6;
  2. This death was caused by an unlawful and dangerous act or omission; OR
  3. The death was caused by criminal negligence.
Any acts by the defendant must have been conscious, voluntary and deliberate, but they do not need to have intended to kill the person.

In the case of negligent manslaughter, the prosecution must also prove that the defendant owed the victim a duty of care, which they then breached by their own negligence.1 Determining whether there was a duty of care often involves a consideration of complex legal principles.

The negligent act or omission, or the unlawful and dangerous act, must have been the cause of the death.

Questions in cases like this
  • What was the relationship between you and the victim?
  • Did your actions cause the death?
  • Were there other factors contributing to the child’s death?
  • Are there other mitigating circumstances?
The most common defence to this charge is that one or more elements of the charge are not made out. For example:

  • There was no duty of care owed to the victim;
  • The act or omission was not the substantial operating cause of the death;
  • The act was not unlawful and/or dangerous
Other possible defences can include, but are not limited to:

  • You acted in self-defence. To successfully raise a defence of self-defence, you must satisfy the Court that your actions were necessary and proportionate in the circumstances.
  • Somebody else committed the manslaughter.
  • The act was necessary and reasonable in circumstances of sudden and extraordinary emergency;
  • Automatism – your actions were not conscious and voluntary.
Maximum penalty for section 5A of the Crimes Act 1958
A person who is found guilty of having committed Child Homicide may be sentenced to a maximum penalty of level 2 imprisonment (25 years).

Child homicide is a category 2 offence. This means that a court must impose a term of imprisonment except in the case of some narrow exceptions.
[1] (R v Sood (Ruling No 3) [2006] NSWSC 762).